Carolyn Mauldin v. Beatrice Branch

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-CA-00146-SCT

CAROLYN MAULDIN,
STACY SPEARMAN,
DAVID MITCHELL,
JAMES CLAY HAYS, JR., AND
MISSISSIPPI REPUBLICAN
EXECUTIVE COMMITTEE

v.

BEATRICE BRANCH,
RIMS BARBER,
L.C. DORSEY,
DAVID RULE,
MELVIN HORTON,
JAMES WOODARD,
JOSEPH P. HUDSON
AND ROBERT NORVEL

DATE OF JUDGMENT: 12/21/2001
TRIAL JUDGE: HON. PATRICIA D. WISE
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: MICHAEL B. WALLACE
CHRISTOPHER ROYCE SHAW
ARTHUR F. JERNIGAN, JR.
RICHARD F. SCRUGGS
F. KEITH BALL
GRANT M. FOX
STACI BOZANT O'NEAL
ATTORNEYS FOR APPELLEES: ROBERT B. McDUFF
CARLTON W. REEVES
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 12/18/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
 EN BANC.

WALLER, JUSTICE, FOR THE COURT:

¶1. This appeal arises from a chancery court's adoption of a congressional redistricting plan when the

Legislature failed to perform its statutorily-mandated duty to do so. We find that the chancery court lacked

jurisdiction over this case and that the only state governmental entity authorized to draw new congressional

districts is the Legislature. Therefore, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶2. Pursuant to § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, Mississippi must obtain

federal preclearance of new congressional redistricting plans from either the United States District Court

for the District of Columbia or the United States Attorney General. In Mississippi, the State Legislature

is responsible for submitting a new plan before the congressional candidate qualifying deadline. Miss. Code

Ann. § 5-3-123 (Rev. 2002).1

¶3. Following the 2000 decennial census, Mississippi’s delegation to the United States House of

Representatives was reduced from five to four representatives. However, the Legislature failed to act and

left the old five-district plan in place.

¶4. Concerned about the Legislature’s failure to act, on October 5, 2001, Beatrice Branch, Rims

Barber, L. C. Dorsey, David Rule, Melvin Horton, James Woodard, Joseph P. Hudson and Robert

Norvel2 ("Branch") filed for injunctive relief in the Chancery Court of the First Judicial District of Hinds

1
"The members of the [Legislature's Standing Joint Congressional Redistricting Committee] shall
draw a plan to redistrict, according to constitutional standards, the United States districts for the state of
Mississippi no later than thirty (30) days preceding the convening of the next regular session of the
legislature . . . ." Miss. Code Ann. § 5-3-123 (Rev. 2002).
2
Plaintiffs, appellees here, are individual registered voters of various Mississippi counties.

2
County, Mississippi, against the State Board of Election Commissioners,3 alleging that it did not appear to

be likely that the Legislative Standing Joint Congressional Redistricting Committee (SJCRC) would submit

a new redistricting plan and requesting the chancery court to adopt and implement a plan in time for § 5

preclearance and the candidate qualifying deadline of March 1, 2002. After the chancery court assumed

jurisdiction, the SJCRC filed a motion to dismiss in which it alleged, inter alia, that the suit was not ripe as

the Legislature retained “substantial time” to act either at a special session or at the regular session beginning

on January 2, 2002, without any disruption or delay to the candidate qualifying or primary dates, or the

general election in November of 2002. On November 19, 2001, the chancery court denied the motion to

dismiss and urged the Legislature and the Governor to renew their efforts to enact and implement a

congressional redistricting plan as soon as possible. The Mississippi Democratic Executive Committee and

the Mississippi Republican Executive Committee were joined as indispensable parties. Carolyn Mauldin,

Stacy Spearman, David Mitchell and James Clay Hays, Jr.4 ("Mauldin"), were joined as party defendants

after they filed a motion to intervene.

¶5. Meanwhile, suit was filed in the United States District Court for the Southern District of Mississippi

for an injunction to stay the state court action.5 This complaint alleged that Mississippi's then-existing five-

member district plan could not be enforced under federal law and that any plan subsequently adopted by

state authorities, including the chancery court, could not be enforced until precleared under § 5. The three-

3
The State Board of Election Commissioners consists of the Secretary of State, the Attorney
General, and the Governor. Miss. Code Ann. § 23-15-211 (Rev. 2001).
4
The Mauldin intervenors are all individual registered voters of various Mississippi counties.
5
John Robert Smith, Shirley Hall and Gene Walker v. Eric Clark, Secretary of State
of Mississippi; Mike Moore, Attorney General for the State of Mississippi; Ronnie
Musgrove, Governor of Mississippi; Miss. Republican Executive Comm.; and Miss.
Democratic Executive Comm., Civil Action No. 3:01-cv-855WS (S.D. Miss.).

3
judge district court convened to hear the federal lawsuit deferred ruling on the request for an injunction on

December 5, 2001, so that state authorities would have a continued opportunity to redistrict. The three-

judge court ruled, “[I]f it is not clear . . . by January 7, 2002, that the State authorities can have a

redistricting plan in place by March 1,” it would assert jurisdiction, proceed to rule on the injunction motion,

and, if necessary, draft and implement its own reapportionment plan. Smith v. Clark, 189 F. Supp. 2d

502, 503 (S.D. Miss. 2001) (three-judge court).

¶6. In mid-December, the SJCRC filed for writs of prohibition and mandamus in this Court alleging

that the chancery court lacked jurisdiction. Finding that the chancery court had jurisdiction, we denied the

petitions and stated, “Any congressional redistricting plan adopted by the chancery court . . . will remain

in effect, subject to any congressional redistricting plan which may be timely adopted by the Legislature.”

In re Mauldin, No. 2001-M-01891 (Miss. Dec. 31, 2001).

¶7. Later in December, the chancery court conducted a trial in which 11 proposed redistricting plans

were submitted into evidence. The chancery court adopted the submitted plan called "Branch Plan 2A,"

holding that the plan constituted the best compromise between the separate plans adopted by the

Mississippi House of Representatives and Senate and that it best provided parity and competition between

the supporters of the two incumbents whose districts were affected by the mandatory redistricting. Branch

Plan 2A was submitted to the United States Attorney General for § 5 preclearance on December 26, 2001.

¶8. In February of 2002, the three-judge court announced that it had drawn a redistricting plan and

that it intended to implement this plan absent timely preclearance of the chancery court plan. Smith v.

Clark, 189 F. Supp. 2d 512 (S.D. Miss. 2002) (three-judge court). The three-judge court ordered:

that the [State of Mississippi] shall use the congressional redistricting plan
adopted by this court . . ., in all succeeding congressional primary and
general elections for the State of Mississippi thereafter, until the State of

4
 Mississippi produces a constitutional congressional redistricting plan that
is precleared in accordance with the procedures in Section 5 of the Voting
Rights Act of 1965.

Smith v. Clark, 189 F. Supp. 2d 548, 559 (S.D. Miss. 2002) (three-judge court), aff'd sub. nom.

Branch v. Smith, 538 U.S. 254, 123 S. Ct. 1429, 155 L. Ed.2d 407 (2003).

¶9. On February 14, the United States Attorney General notified the Mississippi Attorney General that

“the Department is not formally seeking additional information regarding the redistricting plan,” but that it

needed more information about this Court’s order in In re Mauldin. The Department of Justice asserted

that when it received the requested information a new 60-day period for its § 5 review would begin. It

expressed concern about reviewing the plan in the absence of a decision from this Court regarding the

chancery court’s jurisdiction.

¶10. The three-judge court subsequently enjoined the chancery court plan on the ground that this Court’s

assertion of chancery jurisdiction in In re Mauldin constituted a change in election law requiring § 5

preclearance – which had not been granted. Smith v. Clark, 189 F. Supp. 2d 503, 508 (S.D. Miss.

2002) (three-judge court). Alternatively, the federal district court held that the assertion of state court

jurisdiction violated Article I, § 4 of the United States Constitution, reasoning congressional redistricting

is a legislative function and that, without an express delegation of power, state courts cannot adopt a

remedial redistricting plan if the legislature defaults. Smith v. Clark, 189 F. Supp. 2d at 558. In late

February, the district court ordered implementation of its own plan, and the 2002 congressional elections

were held accordingly. Id. at 559.

¶11. The United States Supreme Court affirmed the federal injunction strictly due to the fact that the

chancery court plan had not been precleared. Branch v. Smith, 538 U.S. 254, 123 S. Ct. 1429, 1437,

5
155 L. Ed. 2d 407 (2003). It did not address the issue of whether the chancery court's assumption of

jurisdiction was constitutional. Id. Finally, the Supreme Court stated that its ruling was not "binding upon

state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by

the Chancery Court." Id.

¶12. Mauldin has appealed the issues of the chancery court's assumption of jurisdiction and its adoption

of the Branch Plan 2A. Branch defends the chancery court's judgment, while the State Board of Election

Commissioners did not file a brief in this appeal.

DISCUSSION

I. STATUTORY AUTHORITY TO DRAW
CONGRESSIONAL DISTRICTS.

¶13. Our statutes clearly provide that the only governmental entity in this state that is authorized to draw

congressional districts is the Legislature. See Miss. Code Ann. § 5-3-123 (Rev. 2002). That power is

not granted to any other governmental entity by the Mississippi Constitution, statutes, or case law.

¶14. The power to assist the Legislature with "professional, technical and other expertise" in

redistricting is given to "all political subdivisions, state agencies, and all other creatures of the state of

Mississippi." Miss. Code Ann. § 5-3-127 (Rev. 2002). Because the state courts are not mentioned

specifically in either § 5-3-123 or § 5-3-127, they must necessarily fall under the category of "all other

creatures of the state of Mississippi." Therefore, state courts are only authorized to assist in redistricting,

not to engage in the act of redistricting. The chancery court was clearly erroneous in assuming jurisdiction

of this matter in which the parties requested the court to engage in redistricting.

¶15. Our case law clearly states that chancery courts lack jurisdiction to adjudicate disputes over

congressional redistricting. In re McMillin, 642 So. 2d 1336, 1339 (Miss. 1994) ("Chancery Courts

6
in this state do not have jurisdiction to enjoin elections or to otherwise interfere with political and electoral

matters which are not within the traditional reach of equity jurisdiction."); Brumfield v. Brock, 169 Miss.

784, 142 So. 745, 746 (1932) ("By a long line of decisions this court has held that courts of equity deal

alone with civil and property rights and not with political rights.").

¶16. This ruling is supported by the United States District Court's finding as follows:

This predicate conclusion raises the next question that we must
resolve: whether any enactment of the Mississippi legislature grants to the
chancery court the power to redistrict the State of Mississippi for
congressional elections. We find no such statute. Furthermore, no case
of the Mississippi Supreme Court has ever indicated there is such a
statute. We thus come to the final conclusion that the redistricting plan for
congressional elections in 2002 produced by the Hinds County Chancery
Court transgresses Article I, Section 4 of the United States Constitution,
is therefore unconstitutional, and is consequently a nullity. . . .

***

[C]ongressional redistricting must be done within the perimeters of the
legislative processes, whether the redistricting is done by the legislature
itself or pursuant to the valid delegation of legislative power. We have
found no cases that support a contrary conclusion.

***

[W]e can find no legislative act upon which to base the chancery
court's authority to act in congressional redistricting. While the Mississippi
legislature has empowered other state bodies to redistrict a number of
state electoral districts, it has not authorized any other state body,
including the chancery court, to redistrict congressional districts.

Smith v. Clark, 189 F. Supp. 2d at 550, 554, 556 (footnote omitted) (emphasis in original).

¶17. The United States District Court criticized this Court's summary order in In re Mauldin that the

chancery court did have jurisdiction over this matter, stating, "The court did not provide any basis for its

holding, did not refer to its earlier cases to the contrary, and did not point to any legislative authority that

7
authorized the chancery court to act." Id. at 557 (footnote omitted). In light of our interpretation of

statutory law and upon reconsideration of our previous ruling, we reverse that order and rule that no

Mississippi court has jurisdiction to draw plans for congressional redistricting.

¶18. We therefore find that the Hinds County Chancery Court erred in assuming jurisdiction over this

matter.6

II. AT-LARGE ELECTIONS.

¶19. The State has a statutorily-mandated and federally-approved default procedure7 which comes into

play when the Legislature fails to act. Even though an at-large election is an unpopular option, it is the law

of this State.

¶20. The only way this Court may not apply a pertinent statute to a set of facts is to declare the statute

unconstitutional. Moore v. Grillis, 205 Miss. 865, 88, 39 So. 2d 505, 509 (1949) (Only the Legislature

may decide whether a law is needed and advisable. The Court's duty is to "construe the law and apply it

to the case presented and determine whether the Constitution of this State authorizes the legislation."). Or,

put another way:

6
The ruling that the chancery court did not have jurisdiction does not offend Art. 6, § 147 of the
Mississippi Constitution which provides:

No judgment or decree in any chancery or circuit court rendered
in a civil cause shall be reversed or annulled on the ground of want of
jurisdiction to render said judgment or decree, from any error or mistake
as to whether the cause in which it was rendered was of equity or
common-law jurisdiction; . . .

We find that no state court has jurisdiction to draw plans for congressional redistricting; therefore
jurisdiction does not properly lie in the circuit court.
7
Miss. Code Ann. § 23-15-1039 (Rev. 2001) provides for at-large elections when the Legislature
fails in its duty to provide new congressional districts.

8
 The duty of this Court is to interpret the statutes as written. It is not the
duty of this Court to add language where we see fit. "[O]ur primary
objective when construing statutes it to adopt that interpretation which will
meet the true meaning of the Legislature." [Citations omitted.] "Our role
is to determine the legislative intent and constitutionality of acts passed by
the Legislature, and if we interpret a statute contrary to the intent or will
of the Legislature, that body has the absolute authority to change the
statute to suit its will."

Stockstill v. State, 854 So. 2d 1017, 1022-23 (Miss. 2003) (quoting Anderson v. Lambert, 494 So.

2d 370, 372 (Miss. 1986) & Board of Sup'rs of Lamar County v. Hattiesburg Coca Cola

Bottling Co., 448 So. 2d 917, 927 (Miss. 1984) (Hawkins, J., concurring in part & dissenting in part)).

¶21. "Legislative acts are . . . cloaked with a presumption of constitutionality, and unconstitutionality must

appear beyond reasonable doubt." Estate of Smiley, 530 So. 2d 18, 21-22 (Miss. 1988) (citing Miss.

Power Co. v. Goudy, 459 So. 2d 257, 263 (Miss. 1984)). A statute's validity is presumed:

We adhere here to the rule that one who assails a legislative enactment
must overcome the strong presumption of validity and such assailant must
prove his conclusions affirmatively, and clearly establish it beyond a
reasonable doubt. All doubts must be resolved in favor of validity of a
statute. If possible, a court should construe statutes so as to render them
constitutional rather than unconstitutional if the statute under attack does
not clearly and apparently conflict with organic law after first resolving all
doubts in favor of validity.

Loden v. Miss. Pub. Serv. Comm'n, 279 So. 2d 636, 640 (Miss. 1973) (citations omitted).

¶22. The Court must presume that the Legislature "intended to comply with the organic law, and the

statute should be given a reasonable interpretation which is consistent with that presumed intent and which

would permit the upholding of the act." Berry v. Southern Pine Elec. Power Ass'n, 222 Miss. 260,

76 So. 2d 212, 214 (1954) (quoting Willmut Gas & Oil Co. v. Covington County, 221 Miss. 613,

71 So. 2d 184, 189 (1954)).

9
¶23. This Court cannot ignore the will of the people of this State as encapsulated in § 23-15-1039. To

do so would undermine all enforcement of state law.

IV. FEDERAL INJUNCTION.

¶24. However, an at-large election cannot be held at present. Due to the Legislature's failure to act, the

State is currently under a federal court injunction ordering that the State use the congressional districts

drawn by the three-judge court.8 This injunction will remain in place until that court vacates it or the

Legislature draws a redistricting plan which is then federally precleared under § 5. Therefore, at-large

elections cannot be held until the injunction is vacated.

CONCLUSION

¶25. Mississippi too often defaults in meeting its responsibilities as a state. We wait for the federal

government and the federal courts to intervene for us and then we complain about the loss of our state's

rights. And history has shown the federal government will intervene when the state fails to act to protect

its citizens. In this case, we, as a Court, are confronted with a situation where our Legislature defaulted

on its constitutional and statutory obligations to the citizens of the state and failed to protect our state's right

to govern itself in the election of our congressional representatives. This default is nothing less than a

declaration by the Legislature that Mississippi does not think it is necessary to exercise its authority as one

of the fifty states to determine its own congressional districts. It denies our peoples' representatives of any

influence over the makeup of our congressional representatives.

8
"[The State of Mississippi] shall use the congressional redistrict plan adopted by this court . . ., in
all succeeding congressional primary and general elections for the State of Mississippi thereafter, until the
State of Mississippi produces a constitutional congressional redistricting plan that is precleared in
accordance with the procedures in Section 5 of the Voting Rights Act of 1965." Smith v. Clark, 189
F. Supp. 2d at 559.

10
¶26. The slate is clean now, and the way is clear for our Legislature to reassert its authority to represent

the people of this state in the adoption of the congressional districts to be used in the next election in 2004.

Mississippi, and more specifically the Legislature, should seize this opportunity now to use its constitutional

powers and rectify this problem by approving constitutionally acceptable election districts which reflect the

voice of the state's elected legislators and then obtaining federal preclearance of those districts.

¶27. The chancery court's judgment is reversed, and this action is dismissed without prejudice for lack

of jurisdiction.

¶28. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. EASLEY,
J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
DIAZ, J., NOT PARTICIPATING.

McRAE, PRESIDING JUSTICE, DISSENTING:

¶29. The majority punts on the default caused by the Legislature's wilful refusal to redistrict. Not only

does the majority turn a blind eye towards the Tenth Amendment to the United State Constitution's

reservation of powers to the states, but it also trespasses upon rights guaranteed to Mississippi's citizens

through our own state constitution. Why does the majority want to give up state's rights to the Federal

Government? We should accept our responsibility when the Legislature defaults in its responsibility and

this Court should step in and do the will of its citizens. The Legislature can still redistrict, but until it does,

11
our state's judiciary should maintain that responsibility and not leave it to the federal court to do our work.

Accordingly, I dissent.

I. AUTHORITY TO DRAW CONGRESSIONAL DISTRICTS.

¶30. I agree that the primary responsibility and authority for drawing congressional districts rests

squarely with the Legislature. However, I disagree with the majority's inaccurate interpretation of Miss.

Code Ann. § 5-3-127 (Rev. 2002).

¶31. The majority contends that § 5-3-127 is directly applicable to the case at bar because it strictly

limits the role of the courts to one of assistance and, therefore, prevents the chancellor from assuming

jurisdiction over the matter. First, a plain reading of the statute reveals that this is simply an assurance by

the Legislature that if it asks a fellow government actor for assistance in redistricting, that said actor is

authorized to do so. There is no prohibitive language in the statute which tells us what certain branches of

government may not do. Not only is there absolutely no language therein which would seek to limit the

jurisdiction of any court of this state, if there were, such would be in contravention of the Constitution of

the State of Mississippi.

¶32. Sections 156 and 159 of Article 6 of the Mississippi Constitution of 1890 provide our state courts

with this jurisdiction. Section 159 provides a list of subjects over which chancery courts retain jurisdiction.

The jurisdiction of the circuit courts on the other hand, is spelled out in Section 156, which states that "[t]he

circuit court shall have jurisdiction in all matters civil and criminal in this state not vested by this constitution

in some other court, and such appellate jurisdiction as prescribed by law." These two sections highlight

the command in Article 3, Section 24 of the Mississippi Constitution that the courts shall be open to and

a remedy provided for all who have been injured.

12
¶33. Again, the Mississippi Constitution grants chancery courts jurisdiction over various matters,

including “all matters in equity.” Miss. Const. art. 6, § 159. This provision is codified in Miss. Code Ann.

§ 9-5-81 (Rev 2002). Citing a “long line” of this Court's early twentieth century jurisprudence,9 however,

Mauldin urges that chancery court jurisdiction in redistricting matters is forbidden. While this “long line” of

cases cannot be ignored, it must be viewed in continuity with the longer line of cases that succeeds it. See,

e.g., City of Grenada v. Harrelson, 725 So. 2d 770 (Miss. 1998); Adams County Election

Commission v. Sanders, 586 So. 2d 829 (Miss. 1991); Carter v. Luke 399 So. 2d 1356 (Miss

1981); Lovorn v. Hathorn, 365 So. 2d 947 (Miss. 1978). This latter line of precedent is in step with

the United States Supreme Court’s landmark ruling in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7

L. Ed. 2d 663 (1962), and its more contemporary rulings in Growe v. Emison, 507 U.S. 25, 113 S. Ct.

1075, 122 L. Ed. 2d 388 (1993), and Scott v. Germano, 381 U.S. 407, 85 S. Ct. 1525, 14 L. Ed. 2d

477 (1965) (per curiam). Our later cases indicate that when the Legislature fails to exercise its redistricting

authority, the courts of this state have full jurisdiction to redistrict. This is especially true since the

Legislature's failure deprives Mississippi voters of their constitutional voting rights, especially in this state,

in which race-conscious districting has been required. See Jordan v. Winter, 604 F. Supp. 807 (N.D.

9
See Howard v. Sheldon, 151 Miss. 284, 294, 117 So. 839 (1928), a 1928 case which held
that courts cannot interfere with or regulate holding of primary elections or conventions by political parties;
Barnes v. McLeod, 165 Miss. 437, 140 So. 740 (1932), a 1932 case which held that the chancery
court does not have jurisdiction to enjoin county election commissioners from placing a Democratic
nominee for county office on official ballots for general election due to fraud in primary election;
Brumfield v. Brock, 169 Miss. 784, 142 So. 745 (1932), a 1932 case which held that chancery court
cannot enjoin primary and general elections for congressmen on the ground the then current redistricting
act was void, where only possible expense would be to slightly lengthen ballot; Barnes v. Barnett, 241
Miss. 206, 129 So. 2d 638 (1961), a 1961 case which held that apportionment and reapportionment of
the state Legislature and of congressional districts is a political question and not a judicial one, and that the
remedy for unfairness in districting and apportioning representation is at the ballot box and not by judicial
decree.

13
Miss. 1984) (three-judge court), aff'd mem. sub nom. Miss. Republican Executive Comm. v.

Brooks, 469 U.S 1002, 105 S. Ct. 416, 83 L. Ed. 2d 343 (1984) (requiring that a majority African-

American voting-age population congressional district be created in Mississippi).

¶34. The earlier line of cases, including Barnes v. McLeod, 165 Miss. 437, 140 So. 740 (1932), and

Brumfield v. Brock, 169 Miss. 784, 142 So. 745 (1932), which are the ultimate authority upon which

Mauldin rests to deny jurisdiction, echo an era in which election matters were considered nonjusticiable,10

political questions outside the judiciary’s scope -- due to separation of powers principles. Indeed,

reapportionment “jurisprudence” did not exist at that time. The judicial disposition on both the state and

federal level at the time regarded reapportionment matters as a “political thicket,” in which the judiciary was

not to interfere regardless of the constitutional problems stirring therein. Colegrove v. Green, 328 U.S.

549, 556, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946).

¶35. In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), however, the United

States Supreme Court mandated that, in light of this nation’s insidious civil-rights record, such a disposition

was no longer legitimate.11 Clearly, after Baker, questions involving redistricting are no longer exclusively

“political.” Specifically, Baker held that courts have jurisdiction to decide apportionment questions raised

in litigation, and their jurisdiction is not defeated by labeling the issue as one involving a “political question.”

10
"Nonjusticiability" means inappropriateness of subject for judicial consideration, and the
nonjusticiability of a political question is primarily a function of separation of powers.

11
In Baker, a three-judge federal district court held that it lacked subject matter jurisdiction and
that no justiciable claim had been stated in an action brought to require the reapportionment of the
Tennessee Legislature, which had failed to redistrict since 1901. The Supreme Court reversed the district
court, holding that the voter-plaintiffs had indeed stated a cognizable cause of action based on the equal
protection clause. The case was remanded to be heard and decided.

14
Mississippi’s post-Baker line of decisions, which the majority and Mauldin do not meaningfully consider,

reflect this change.

¶36. Appellants contend that this Court affirmed in Glass v. Hancock Co. Election Comm’n, 250

Miss. 40, 156 So. 2d 825 (1963), decided one year after Baker, that chancery courts of this state do not

retain jurisdiction over political cases. Mauldin also contends that in Glass, this Court, while relying on

our 1932 ruling in Barnes, rejected the contention that Baker v. Carr required a different view of the

chancery court jurisdiction. Mauldin misreads this Court’s analysis and holding in Glass.

¶37. The issue in Glass was whether injunction would lie to prevent the county election commission

from conducting elections before the county was redistricted following population changes. The very

peculiar situation in Glass was the federal government’s land acquisition of a portion of the county’s land

for a NASA experiment site, which was to result in a population exodus in that locality. The Board of

Supervisors, therefore, responsible for endeavoring redistricting, entered an order to redistrict with the

chancery court, such redistricting, however, being contingent upon the settlement of the dislocated

population. Further, the applicable redistricting statute instructed that “‘the board, whenever a majority of

the qualified voters of the county shall have voted to change or alter the existing districts to those set forth

and described in the petition, shall at its first meeting thereafter establish said proposed districts by order

of its minutes and in default thereof may command to do so by writ of mandamus” Id. at 829

(citing the then-applicable Section 2870 of the Mississippi Code) (emphasis added). At the time plaintiffs

sought to enjoin the election, the Board had not had a chance to default. Accordingly, Glass held that

pursuant to (1) Section 2708 and (2) the fact that the Board could not redistrict due to the dislocated

15
population, and (3) the fact that the plaintiffs had not sought mandamus, injunction was improper – plaintiffs

had not stated a claim upon which relief could be granted.

¶38. In Glass this Court did not hold that the chancery court did not, nor would not have jurisdiction

had other remedies first been exhausted. Indeed, it held that the proper remedy in that case was use of the

writ of mandamus, pursuant to the applicable statute. The implication was that were it not, injunction would

lie thus providing the chancery court with jurisdiction over the cause. Id. at 830.

¶39. In Glass this Court analyzed Baker v. Carr and reasoned it inapplicable for the sole reason that,

as distinguishable fromthe Glass-plaintiffs, the Baker-plaintiffs’ voting rights had been violated before

they sought redress in the court. Id. at 832. In other words, plaintiffs had alleged a cognizable claim.

Glass quoted at length from that portion of Baker most applicable to its facts – Justice Douglas’s

instructive footnote 5 in his concurring opinion:

The District Court need not undertake a complete reapportionment. It
might possibly achieve the goal of substantial equality merely by directing
respondent to eliminate the egregious injustices. Or its conclusion that
reapportionment should be made may in itself stimulate legislative action.
That was the result in Asbury Park Press v. Woolley, 33 N.J. 1, 161
A.2d 705, where the state court ruled it had jurisdiction:

If by reason of passage of time and changing conditions
the reapportionment statute no longer serves its original
purpose of securing to the voter the full constitutional
value of his franchise, and the legislative branch fails to
take appropriate restorative action, the doors of
the courts must be open to him. The lawmaking
body cannot by inaction alter the constitutional system
under which it has its own existence. 33 N.J. at 14, 161
A.2d at 711. The court withheld its decision on the
merits in order that the legislature might have an
opportunity to consider adoption of a reapportionment
act. For the sequel see Application of Lamb, 67 N.J.
Super. 39, 46-47, 169 A.2d 822, 825-826.

16
 Reapportionment was also the result in Magraw v. Donovan,
D.C., 159 F. Supp. 901, where a federal three-judge District Court took
jurisdiction, saying, D.C., 163 F. Supp. 184, 187:

Here it is the unmistakable duty of the State Legislature to
reapportion itself periodically in accordance with recent
population changes. . . . Early in January 1959 the 61st
Session of the Minnesota Legislature will convene, all of
the members of which will be newly elected on
November 4th of this year. The facts which have been
presented to us will be available to them. It is not to be
presumed that the Legislature will refuse to take such
action as is necessary to comply with its duty under the
State Constitution. We defer decision on all the
issues presented (including that of the power of
this Court to grant relief), in order to afford the
Legislature full opportunity to "heed the
constitutional mandate to redistrict.''

See D.C., 177 F. Supp. 803, where the case was dismissed as moot, the
State Legislature having acted.

156 So. 2d at 831-32 (quoting Baker v. Carr, 369 U.S. at 250 n.5 (Douglas, J., concurring)) (emphasis

added). We conclude that, contrary to Mauldin’s contention, a more thorough reading of this Court’s

holding and analysis in Glass affirms that the chancery courts of this state indeed have jurisdiction to ensure

redistricting where (1) relief in equity is available and proper (2) the Legislature has failed in its duty to

redistrict, and (3) time to redistrict is running out.

¶40. Likewise, in Lovorn v. Hathorn, 365 So. 2d 947 (Miss. 1978), this Court reversed and

remanded to the chancery court a matter involving the proper means of electing state officials and never

indicated that the chancery court was without jurisdiction. And in Carter v. Luke, 399 So. 2d 1356

(Miss. 1981), this Court addressed chancery court rulings concerning a school board trustee’s election and

never suggested a lack of jurisdiction. In fact, this Court cited the “detailed decree of the Chancellor . .

. outlin[ing] the election procedure,” and stated “[w]e think the lower court acted properly and within the

17
applicable statutes and law in entering [that] final decree. . . . Id. at 1358. These cases were consolidated

for United States Supreme Court review, whereupon the Court held that the Mississippi state courts had

the power to decide whether a proposed change in election procedure requires preclearance under § 5 of

the Voting Rights Act. Hathorn v. Lovorn, 457 U.S. 255, 268, 102 S. Ct. 2421, 72 L. Ed. 2d 824

(1982). These cases clearly involve election law, and thus political matters, although they were never

reversed for lack of jurisdiction; each was adjudicated in the chancery court.

¶41. Further, in Adams County Election Commission v. Sanders, 586 So. 2d 829, 380 (Miss.

1991), this Court held that the chancery courts are not prohibited from hearing cases involving electoral

matters. There, the chancery court enjoined pending county elections and set a new election schedule due

to federal law violations. This Court held that

state courts have concurrent jurisdiction with the federal courts to decide
whether § 5 of the Voting Rights Act applies to contemplated changes in
election procedures. . . . We recognize that a state court clearly has
jurisdiction to decide questions of violations of the one person, one vote
standard under the 14th Amendment . . . as well as under Miss. Const.
Art. 3, § 14.

586 So. 2d at 380 (emphasis added). This case implies that where there is a question regarding the one-

person, one-vote requirement, equity courts have jurisdiction.

¶42. As recently as 1994, however, this Court held that the “chancery courts in this state do not have

the jurisdiction to enjoin elections or to otherwise interfere with political and electoral matters which

are not within the traditional reach of equity jurisdiction.” In re McMillin, 642 So.2d 1336 (Miss. 1994).

In fairly considering McMillin as dispositive, we are guided by two realizations.12

12
Immediately, I recognize that one must “interfere” with something; one cannot “interfere” with
nothing, which is what the Legislature handed the citizens of this State when it adjourned repeatedly
without a redistricting plan in the present case. Indeed, Branch did not seek that the chancery court

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¶43. First, McMillin, as did Mauldin in the present case, and, as did the federal district court in its

order in this case, cited a line of precedent predating Baker v. Carr by, in some cases, nearly 35

years, for the proposition that the chancery is without jurisdiction over election matters. Id. Indeed,

McMillin cited as supporting authority the following cases: Howard v. Sheldon, 151 Miss. 284, 294,

117 So. 839, 839 (1928), a 1928 case which held that courts cannot interfere with or regulate holding of

primary elections or conventions by political parties; Barnes v. McLeod, 165 Miss. 437, 140 So. 740

(1932), a 1932 case holding that the chancery court does not have jurisdiction to enjoin county election

commissioners from placing a Democratic nominee for county office on official ballots for general election

due to fraud in primary election; Brumfield v. Brock, 169 Miss. 784, 142 So. 745 (1932), a 1932 case

holding that chancery cannot enjoin primary and general elections for congressmen on the ground the then

current redistricting act was void, where the only possible expense would be to slightly lengthen ballot; and

Barnes v. Barnett, 241 Miss. 206, 129 So. 2d 638 (1961), a 1961 case holding that apportionment

and reapportionment of the state legislature and of congressional districts is a political question and not a

judicial one, and that the remedy for unfairness in districting and apportioning representation is at the ballot

box and not by judicial decree. 642 So.2d 1336. McMillin also cited Todd v. Smith, 331 So. 2d 920

(Miss. 1976), which held that since the proper remedy of petitioning the county executive committee within

20 days after the election had not been sought, the chancery court had no jurisdiction to grant injunctive

relief. Finally, the Court cited Goodman v. Rhodes, 375 So. 2d 991, 993 (Miss. 1979), which cited

interfere with any legislative plan or legislative enactment. Also, Branch did not seek to enjoin an election.
Instead, they seek equitable relief to ensure an election under a lawful plan, pursuant to the election
schedule mandated by state law.

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Barnes (1932) and Brumfield (1932) as its only authority to hold that chancery courts do not have

jurisdiction to determine the candidates whose names should appear or not appear on a ballot. Id.

¶44. Thus the authorities upon which McMillin relies speak of a time in which political matters were

considered nonjusticiable and /or indicate that injunctive relief was premature. In large measure, therefore,

the case was erroneously reasoned.

¶45. The second realization is that this Court has since said that McMillin is not a bar to state court

jurisdiction in election cases involving one-person one-vote issues. City of Grenada v. Harrelson, 725

So. 2d 770 (Miss. 1998). In City of Grenada , the circuit court declined to enjoin an election based on

its reading of In re McMillin. Id. at 772. We, however, reversed, holding that the circuit court had

jurisdiction to enjoin the election since the United States Attorney General had returned a § 5 preclearance

letter to the proposed ward-line change submitted by the city council. The new wards were not properly

adopted according to state law and allegedly violated the one-person, one-vote requirement.

¶46. Considering the foregoing, we reasoned that if the Legislature fails to redistrict, as required under

both state and federal law, the constitutional voting rights of Mississippi voters are implicated. These

implications clearly can occur in cases involving the absence of redistricting when election time is nearing,

but the Legislature has nevertheless failed to redistrict. Under our case law after Baker v. Carr, our

equity courts have jurisdiction.

¶47. If there is any remaining doubt as to the propriety of our equity courts taking over when the

Legislature fails to enact a constitutional redistricting plan, Branch v. Smith and Growe v. Emison

eliminate it. When the Legislature does not act, citizens may sue and, then, it is the judiciary's role to

determine the appropriate redistricting plan. Growe , 507 U.S. at 33-34, 113 S. Ct. 1075; Scott v.

20
Germano, 381 U.S. 407, 409, 85 S. Ct. 1525, 14 L. Ed. 2d 477 (1965) (per curiam); Maryland

Comm. v. Tawes, 377 U.S. 656, 676, 84 S. Ct. 1429, 12 L. Ed.2d 595 (1964). In any case, the Court

stated that “[t]he power of the judiciary of a State to require valid reapportionment or to require a valid

redistricting plan has not only been recognized by the Court, but . . . has been specifically encouraged.”

Id. (quoting Scott v. Germano, 381 U.S. at 409). As the Court explained, "In the reapportionment

context, the Court has required federal judges to defer to consideration of disputes involving redistricting

where the State, through its legislative or judicial branch, has begun to address that highly political task

itself." Growe v. Emison, 507 U.S. at 33 (emphasis in original). Pursuant to Growe, therefore, although

the Legislature has initial responsibility to act in redistricting matters, that responsibility can shift to state

judiciary if Legislature fails to act, and to the federal judiciary only once state legislature or state judiciary

have demonstrated inability or disinclination to act. See, e.g., Brooks v. Hobbie, 631 So. 2d 883 (Ala.

1993).

¶48. It is when the law may not be clear as to jurisdiction that Branch v. Smith speaks. The U.S.

Supreme Court affirmed the district court’s injunction strictly on the basis that our assertion of chancery

court jurisdiction had not been precleared. However, the Court vacated the alternative constitutional

ground that such assertion of jurisdiction violated Art. I, § 4 as a basis for the injunction. In vacating that

ground, the Court reiterated that the constitutional analysis was not “binding upon state and federal officials

should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court.”

123 S. Ct. at 1437. Seeking administration of the chancery court plan is exactly what the Mississippi

Attorney General has expressed as his intent.

¶49. Mauldin filed supplemental briefs to this Court following the Supreme Court decision which

continue to press the argument that in the event of a legislative default, our courts are to abandon the field

21
entirely to the federal courts. Not only is our case law unsupportive of this position, Mississippi would be

the only state having addressed this issue to say, as a matter of law, that its courts will undertake no such

responsibility. I am unwilling to take this position.

¶50. Recently, the Oklahoma Supreme Court flatly rejected the notion that its lower courts did not have

jurisdiction in redistricting cases in the event of a legislative default; and in doing so it flatly rejected the

federal district court’s constitutional ruling here. Alexander v. Taylor, 51 P.3d 1204 (Okla. 2002).

¶51. However, even given the majority's erroneous conclusion the chancery courts are without

jurisdiction, our residents still have an available Mississippi judicial forum. As stated in our Constitution and

case law, the circuit courts would retain jurisdiction. See Miss. Const., Art. 6, §156 ("[t]he circuit court

shall have jurisdiction in all matters civil and criminal in this state not vested by our constitution in some other

court"); Farrar v. State, 191 Miss. 1, 2 So. 2d 146, 147 (1941) ("[The Mississippi Constitution of

1890] was intended to parcel out to the respective courts created or authorized therein the entire judicial

jurisdiction of the State, and that none was left undisposed of."). Therefore, under the Mississippi

Constitution there is a state court that has jurisdiction over this matter.

¶52. Furthermore, bringing an action in the wrong state court, is of no consequence in this matter. We

have held that, in interpreting Section 147 to Article 6 of the Mississippi Constitution of 1890, reversal is

not warranted merely for such a jurisdictional discrepancy. See Southern Leisure Homes, Inc. v.

Hardin, 742 So. 2d 1088, 1091 (Miss. 1999).

¶53. The protection of voting rights is the purpose of redistricting, and the courts are the guardians of

those rights. Therefore, it is entirely appropriate that our courts are open to ensure them. Accordingly, the

majority errs in holding otherwise.

22
 II. AT-LARGE ELECTIONS

¶54. Branch asserts that Miss. Code. Ann. § 23-15-1033 mandates that representatives be chosen by

district, not at-large. This section provides:

Representatives in the Congress of the United States shall be
chosen by districts on the first Tuesday after the first Monday of
November in the year 1986, and every two (2) years thereafter; and the
laws regulating general elections shall in all respects apply to and govern
elections for representatives in Congress; and the Governor shall issue a
commission to the person elected in each of said districts.

Miss. Code Ann. § 23-15-1033 (Rev. 2001). (emphasis added). Mauldin and the majority assert that,

an at-large election should have been enforced in the absence of redistricting pursuant to Miss. Code. Ann.

§ 23-15-1039, which provides:

Should an election of representatives in Congress occur after the number
of representatives to which the state is entitled shall be changed, in
consequence of a new apportionment being made by Congress, and
before the districts shall have been changed to conform to the new
apportionment, representatives shall be chosen as follows: In case the
number of representatives to which the state is entitled be increased, then
one (1) member shall be chosen in each district as organized, and the
additional member or members shall be chosen by the electors of the state
at large; and if the number of representatives shall be diminished, then the
whole number shall be chosen by the electors of the state at large.

Miss. Code Ann. 23-15-1039 (Rev. 2001).

¶55. Specifically, Mauldin raised three separate issues regarding the applicability of Section 23-15-1039:

(1) any jurisdiction in the chancery court was limited to enforcement of an at-large election pursuant to the

federal at-large statute concomitant with § 23-15-1039; (2) Branch fails to raise a claim since, in Mauldin’s

view, an at-large election was the proper remedy but was not sought; and (3) the chancery court’s refusal

to order an at-large election constituted a change in election law requiring § 5 preclearance. Branch

23
likewise asserted that had the chancery court ordered an at-large election, such order would constitute a

change in election law requiring preclearance since Miss. Code Ann.§ 23-15-1033 directs that members

are to be chosen by district. The single question underscoring each of these arguments is: When, if ever,

is Miss. Code Ann. § 23-15-1039 controlling? Smith v. Branch settles this question. See Smith v.

Branch,123 S. Ct. 1429, 1442 (2003). Under the circumstances preceding state and federal court action

in this case, an at-large election was not required. Id. This conclusion is based upon a reading of our

statutes and the Supreme Court’s recent interpretation of 2 U.S.C. §§ 2(c) and §§ 2(a)(c)(2) and (5).

¶56. Section 2a(c) provides that "Until a State is redistricted in the manner provided by the law thereof

after any apportionment, . . . if there is a decrease in the number of Representatives and the number of

districts in such State exceeds such decreased number of Representatives, they shall be elected from the

State at large." 2 U.S.C § 2a(c). 2 U.S.C. § 2c, however, provides:

In each State entitled in the Ninety-first Congress or in any subsequent
Congress thereafter to more than one Representative under an
apportionment made pursuant to the provisions of section 2a(a) of this
title, there shall be established by law a number of districts equal to the
number of Representatives to which such State is so entitled, and
Representatives shall be elected only from districts so established, no
district to elect more than one Representative (except that a State which
is entitled to more than one Representative and which has in all previous
elections elected its Representatives at Large may elect its Representatives
at Large to the Ninety-first Congress).

2 U.S.C. § 2c. The Supreme Court interpreted these provisions in Branch v. Smith in deciding whether

the federal court in the present case properly enjoined our chancery court’s redistricting plan. 123 S. Ct.

at 1441-43. The Court held:

§ 2a(c) is inapplicable unless the state legislature, and state and federal
courts, have all failed to redistrict pursuant to § 2c. How long is a court

24
 to await that redistricting before determining that § 2a(c) governs? Until,
we think, the election is so immanent that no entity competent to complete
redistricting pursuant to state law (including the mandate of § 2c) is able
to do so without disrupting the election process. Only then
may § 2a(c)’s stop gap provisions be invoked. Thus, §2(a)(c) continues
to function as it always has, as a last-resort remedy to be applied when,
on the eve of a congressional election, no constitutional redistricting plan
exists and there is no time for either the State’s legislature or the courts to
develop one. Carstens v. Lamm, 543 F. Supp. at 77-78. 123 S. Ct.
at 1442. I agree with the U.S. Supreme Court's statement that our at-
large statute “was designed to track U.S.C. §§ 2(a)(c)(2) and (5) and is
operative when those sections would be.” 123 S. Ct. at 1443. That is to
say, (1) the phrase "and before the districts shall have been changed to
conform to the new apportionment" envisions both legislatively and
judicially prescribed change, and (2) the statute does not come into play
as long as it remains feasible for a state or federal court to complete
redistricting.

Id.

¶57. As to Mauldin's argument that Branch failed to state a claim, not only is the above analysis

dispositive, but to add, Miss. Code Ann. § 5-3-123 required the SJCRC to prepare a new redistricting

plan by December 3, 2001. Miss. Code Ann. § 5-3-129 required its submission to the Governor and

Legislature. These statutes were cited in the amended complaint below to demonstrate that the Legislature

was about to default. Section 5-3-123 reads as follows:

The members of the committee shall draw a plan to redistrict, according
to constitutional standards, the United States congressional districts for the
state of Mississippi no later than (30) days preceding the convening of the
next regular session of the legislature after the results of the 1980 decennial
census are published and every ten (10) years thereafter.

Provided, however, the committee shall not be required to present
a plan to the governor and to the legislature prior to four (4) months after
the publication of census data.

25
Miss. Code Ann. § 5-3-123 (2000). Section 5-3-129 reads as follows: "Upon completion of a

redistricting plan, the committee shall present its plan to the governor and to the Mississippi legislature."

Miss. Code Ann. § 5-3-129 (2000). The SJCRC could not come up with a redistricting plan and was fast

in route to miss both the March 1 qualifying deadline set out in Miss. Code. Ann. § 23-15-299, and the

§ 5 preclearance deadline. As a result, Branch filed suit for injunctive relief. Specifically, in paragraph five

of their amended complaint, they alleged:

Unless the legislature adopts a plan in time for it to be implemented in
advance of the March 1 qualifying deadline, the interests of the plaintiffs
and all Mississippi voters in enforcement of Mississippi’s election
laws will be compromised, and their rights under Mississippi law to
participate in a congressional election process conducted in a
timely manner will be violated.

(Emphasis added). In paragraph seven Branch then asked the court to “ensure enforcement of the laws”

and to “adopt and implement a congressional redistricting plan so that the plan can be in place in sufficient

time for the candidate qualification deadlines and election process to go forward according to the schedule

established by Mississippi law."

¶58. In response, the Mauldin Intervenors filed a motion to dismiss claiming that Mississippi law requires

at-large elections in the event of a legislative redistricting default, and therefore deprives the chancery court

of jurisdiction to adopt a redistricting plan.

¶59. I not only observe, as did the chancellor, the glaring conflict between the applicable statutes, and

especially §§ 23-15-1033 and 23-15-1039, I also observe that § 23-15-1033’s requirement to choose

congresspersons by district complies with the well-settled one person-one vote rule now the preeminent

principle of state and federal election law. This is enough to justify the chancery court’s continuing effort

to adopt and implement a constitutional plan, and enough for Branch to have raised a justiciable claim

26
below. Given the inconsistencies of the applicable statutes, the chancellor in asserting her authority relied

on the clearer guidance of Growe v. Emison, 507 U.S. at 33, in which the U.S. Supreme Court stated

that “[t]he power of the judiciary of a State to require valid reapportionment or to require a valid

redistricting plan has not only been recognized by this Court, but . . . has been specifically encouraged.”

Id. (quoting Scott v. Germano, 381 U.S. at 409). In fact, in Growe, the Court held that the federal

court must stay its hand until the state court has issued a redistricting plan in the absence of the legislature’s

timely agreement upon reapportionment. Id. Moreover, in December of 2001, given the exigencies faced,

we ordered the chancellor to proceed. In re Mauldin.

¶60. The authorities available to the chancellor did not negatively answer the question of jurisdiction, nor

did they command that she order an at-large election. Moreover, Branch sought to ensure the enforcement

of Mississippi law in general, and this was sufficient to state a justiciable claim and thus open the court

house door to the present cause, considering Branch's fundamental voting rights. Indeed, much more was

before the bar than the at-large statute, which, incidentally, has never been implemented. An at-large

election was not required. Nor was the chancery court's jurisdiction limited to ordering an at-large election

since Branch had a justiciable claim based on the stakes of their voting rights.

¶61. Because the chancery court had jurisdiction in this case and did not err in adopting its congressional

redistricting plan where the legislature failed to discharge its redistricting duty, the chancery court's judgment

should be affirmed. Therefore, I dissent.

27